Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky State Penitentiary violated the Open Records Act in denying Johnny Gibson's April 25, 2000, request for copies of x-rays of the lateral view of his wrist taken on January 4, 1999. In a response dated May 2, 2000, Sherril Stovall, R.N., a member of Kentucky State Penitentiary's medical staff, denied Mr. Gibson's request, advising him that no lateral view x-ray of his wrist was located in his file. Shortly thereafter, resident legal aide James Nick Harrison initiated this appeal on Mr. Gibson's behalf. Having reviewed the request and denial, along with Mr. Harrison's letter of appeal, we conclude that Kentucky State Penitentiary did not violate the Act in denying Mr. Gibson's request.
In his letter of appeal, Mr. Harrison indicates that Mr. Gibson has initiated a civil action in the Lyon Circuit Court alleging, inter alia , malpractice and negligence in his medical treatment. He further advises that in response to interrogatories propounded by Mr. Gibson, Dr. Steve Hiland stated that "AP and lateral view[s]" x-rays were made of his wrist in order to prescribe initial treatment. Mr. Harrison focuses on the inconsistency between Dr. Hiland's response to the interrogatory and Ms. Stovall's response to the open records request, asserting that:
If Dr. Hiland has given truthful answers under oath, then there may be a violation of KRS Chapter 61 et seq. by Ms. Stovall, which may be an attempt to obstruct justice in this matter. If Dr. Hiland has lied under oath then he possibly committed perjury or other related offenses.
Mr. Harrison asks that the Attorney General "take the necessary action to examine the allegation . . . [of] possible violations of Kentucky Open Records Law and/or other violations of Kentucky Penal Code."
In a conversation with the undersigned on May 24, 2000, Department of Corrections staff attorney Tamela Biggs confirmed that Ms. Stovall was unable to locate a lateral view x-ray of Mr. Gibson's wrist in his file, and that therefore his request could not be honored. Ms. Biggs explained that no such x-ray was, in fact, taken of the wrist. We affirm Kentucky State Penitentiary's denial of Mr. Gibson's request on the basis of the nonavailability of the requested record.
This office has long recognized that a public agency cannot provide access to records that do not exist. See, e.g., OAG 83-111; OAG 87-54; OAG 91-112; OAG 91-203; 97-ORD-17. We have also recognized that it is not our duty to investigate in order to locate documents when an agency asserts that they do not exist. OAG 86-35. Thus, at page 5 of OAG 86-35, we observed, "This office is a reviewer of the course of action taken by a public agency and not a finder of documents . . . for the party seeking to inspect such documents."
In 1994 the Open Records Act was amended. The Act now provides "that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740, dealing with the management of public records, and KRS 61.940 to 61.957, dealing with the coordination of strategic planning for computerized information systems]." KRS 61.8715. The General Assembly has thus recognized "an essential relationship between the intent of [the Open Records Act] " and statutes relating to records management. Id.
Since these amendments took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based on the nonexistence of the requested records. In order to satisfy its statutory burden of proof, an agency must, at a minimum, offer some explanation for the nonexistence of the records. See, for example, 94-ORD-140 (records of investigation not in sheriff's custody because sheriff did not conduct investigation); 97-ORD-17 (evaluations not in university's custody because written evaluations were not required by university's regulations). Kentucky State Penitentiary has explained that no x-ray exists because none was taken, and thus satisfied its statutory burden of proof.
Contrary to Mr. Harrison's apparent belief, the Attorney General is not empowered to examine allegations of "possible violations of . . . [the] Kentucky Penal Code" in the context of an open records appeal. Our analysis is confined to issues arising under the Open Records Act, specifically "whether the agency violated provisions of KRS 61.870 to 61.884." KRS 61.880(2)(a). Accordingly, we do not address his allegations that Ms. Stovall "attempt ed to obstruct justice in this matter," or that Dr. Hiland "committed perjury or other related offenses." Based on our review of Mr. Gibson's request and Kentucky State Penitentiary's denial, we conclude that Ms. Stovall properly denied his request on the basis of the nonavailability of the record requested. Resolution of this appeal turns not on whether the fruits of Kentucky State Penitentiary's search met Mr. Gibson's expectations, but whether Kentucky State Penitentiary made a good faith effort to locate the record, and, having failed to do so, offered a reasonable exploration for its nonexistence. This, it has done.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.